Whats your experience with higher level review?

[FlyboyLeRoy]

Just filed a Higher level review 3/12/2020 with a decision denial with clear evidence and all things needed per cfr 38 for mental health. I am wondering anyone else who has used this route and had look or insight? Time frame? Good experience? My vso said a cue can take a year or so and it's not worth that route, so we just did a HLR with no new evidence and showed them where they were wrong on their OPINIONATED decision. Thanks for your time.  

[Berta]

Thank you Broncovet-

some members here are getting inaccurate advice from somewhere-

I will repeat this again-

The fastest awards I ever got, after denials,involved CUEs I filed the day after or week after I got the denial.

There is NO regulation preventing you from doing that.

There are a few vets here who took my advice and got a fast and positive result by filing CUE right away.

As I mentioned before M1-1MR was changed regarding CUE, due to my letter  to former Secretary Shinseki.

I directed him to my C file, as evidence of my position, asking that HRLs should seek CUE when a decision is made, and that is now in M21.

Also I suggested to extend the NOD deadline when a Reconsideration is filed. That too is in M21-1 now.

Also CUE IS NOT a ONE SHOT  deal !!!!!

A denied CUE can be re submitted, if it does not follow the CUE criteria.

If the BVA denies the CUE, they will often ( but not always) say the veteran or survivor is "not prejudiced":to re filing. That means the claimant can re work the CUE to fit into the legal criteria, and refile it-and if it succeeds -they will have retained the same EED ( in most if nt ll cases) that they sought with the original denied CUE.

There is plenty of info in our CUE forum on that as well.

Someone, who probably never won a CUE claim, is telling vets here that they cannot file CUE within the Appeal period, and probably this person is still saying CUE is a One Shot deal.

If a vet rep, lawyer, or agent tells you this crap  (because they have no case law to support that statement) ask them to join us   and I will give them a lesson on CUE......

I will put this in a new topic in our CUE forum.

I am tired of repeating this info.

And tired of realizing many vets who think they have a CUE, never read the CUE info that has been posted here ad finitum.

 

 

 

 

 

Edited March 31, 2020 by Berta

[john999]

One problem I experienced with ancient Cue claims is the frequent changes to VA laws and regulations.  A Cue I had filed was first denied under one law that existed in 1972 and then stalled for a year and denied under a newer law that existed in 1973.  I believe a vet should file a Cue if justified.  I filed a CUE going back to 1973.  What is obvious today was a foreign language then.  Such as not needed written acknowledgement of evidence received and the VA assuming that everything that could be seen as evidence was reviewed.   Administrative law is such BS. Common sense is thrown out the window to protect vested interests.  However, you don't know if your CUE will prevail unless you file it as a last resort usually.

[Kuwaitin08]

On ‎3‎/‎29‎/‎2020 at 2:14 PM, FlyboyLeRoy said:

Just filed a Higher level review 3/12/2020 with a decision denial with clear evidence and all things needed per cfr 38 for mental health. I am wondering anyone else who has used this route and had look or insight? Time frame? Good experience? My vso said a cue can take a year or so and it's not worth that route, so we just did a HLR with no new evidence and showed them where they were wrong on their OPINIONATED decision. Thanks for your time.  

I submitted an HLR for 5 things. 3 were ironclad cases and 2 were iffy. I won 3 of 5. I would highly recommend having your evidence in hand and your explanation prepared for when you get the call.

4 of the 5 claims were closed in 91 days and the final was remanded and was finally closed at 121 days.

I cant complain about my HLR. Only use the HLR if your evidence originally submitted is absolutely solid and leaves nothing to wonder.

Good luck!

[Vync]

10 hours ago, john999 said:

One problem I experienced with ancient Cue claims is the frequent changes to VA laws and regulations.  A Cue I had filed was first denied under one law that existed in 1972 and then stalled for a year and denied under a newer law that existed in 1973.  I believe a vet should file a Cue if justified.  I filed a CUE going back to 1973.  What is obvious today was a foreign language then.  Such as not needed written acknowledgement of evidence received and the VA assuming that everything that could be seen as evidence was reviewed.   Administrative law is such BS. Common sense is thrown out the window to protect vested interests.  However, you don't know if your CUE will prevail unless you file it as a last resort usually.

I can feel your pain. When I filed my CUEs last September, I had to sift through 20 years of Federal Register regulation changes just to see what was in effect when my rating decision was made in 2000. Part of it was pretty simple because of the Cornell U web site. In some cases, the update citations took me to other resources for me to look at the FR. Some of the laws/reg changes I had to dig up were much older. I honestly hope I never need to review the FR again.

After speaking with a VARO rater last week, I learned a few things. Prior to the AMA going into effect last year, all the mail and filing was handled locally and sometimes would result in fast turnarounds in cases where recent decisions were made. This could be why Berta was getting quick turnarounds by filing a CUE on a recent decision, especially since it was a legacy claim prior to AMA. After AMA, the new intake center does all the scanning, filing, and sorting from a central location. Content is attached to the veteran's account in VBMS. Claims/CUEs are now placed in the national work queue and can be picked up by any rater at any VARO. They don't necessarily own the claim to completion from end to end. Any VARO can work on each leg of the claim. They review the notes, see what needs to be done, issues requests (i.e. C&P exams), then toss it into a holding queue until the request is returned. The rater at the VARO told me that CUE's are handled by the same team that handles HLR. I asked about filing a CUE if still within the appeal window and they said they are instructed to not work them automatically any more, but instead send a letter to the veteran asking them to respond with the correct appeals form (supplemental/HLR/BVA) because the appeal time was still rolling. I don't know if the info she told me was 100% correct due to the inconsistencies I have experienced between VARO's over the past year, but wanted to pass it along. I guess if we are lucky enough to get a VARO employee to process it right the first time, then we are really lucky regardless of how they go about doing it.

 

[john999]

You know with CUE's you have to deal with the law as it was at the time of the CUE.  So the 1973 CUE I filed had to be a CUE under 1973 law.  This was a joke.  The law in 1973 was "VA is always right".   It did not matter that VA obviously did not review my most important evidence.  The assumption was that they did review it.  I had a very able attorney pled my case.  The CUE rule about the CUE having to be so obvious that no judgement can enter into it makes it a clerical error.  I do think that most CUE claims result in disappointment since the game is rigged. However, sometimes we prevail.  I did one time when I just filed on an obvious issue that was almost clerical.  Such as a misspelled name of being in the wrong war.

[Hucast21]

I would personally seek representation from a well-known law firm.

My DRO was denied once again after the rater gave more probative weight with the unfavorable C&P exam from a NP over an IMO from a board-certified specialist.

The rater just regurgitated the same denial reason as before, while also not apply the correct CFR for rating migraines. Also, the NP stated the migraines I experienced in the military was acute only but I have clear documentation that it was not.

I find it ironic how I only had ONE complaint of knee pain during my military service and yet a favorable C&P exam gave me service-connection. The adversarial nature of the VA is apparent in my eyes.

Seek representation if you truly feel that you have clear evidence for your claim.